Magoma Arumba Jarex v Easy Coach Limited

The Respondent contends that it was not aware that the Applicant had lodged an appeal and was only served with the present application in which the Applicant is seeking to reinstate the same. The Respondent holds that from the Case tracking system, the Applicant had not taken any steps in the appeal which led the court to dismiss the same. The Respondent holds that all the steps taken by the Applicant to request for mention dates were after the appeal was dismissed and the applicant had not given any reasons for his inactiveness in the matter and therefore has not shown why the court should exercise its discretion and reinstate it and therefore urges the court to dismiss it. 4. Pursuant to the court’s directions issued on 7th April, 2025, the application was to be canvassed by way of written submissions but only the applicant filed the same dated 23rd May, 2025. He reiterates that the appeal was dismissed without first issuing a Notice to Show Cause. That he had a hard time obtaining certified copies of the lower court proceedings in order to compile the Record of Appeal so as to prosecute the appeal. He holds that it was unjust and unfair to dismiss the appeal and it would be in the interest of justice that the orders dismissing the appeal be set aside. He has urged the court to exercise discretion in line with the case of Shah –vs- Mbogo [1967] EA 116 and that the court should opt for the lower rather than the higher risk of injustice as determined in the case of Lucy Bosire –vsKehancha Div Land Dispute Tribunal & 2 Others [2013]eKLR. Analysis and Determination 5. Before delving into the merits of the application on reinstatement of the appeal, the court shall give the chronology of events in this Appeal. The Judgment of the trial court was delivered on 31st October, 2023, aggrieved by the same, the Appellant filed the Memorandum of Appeal dated 16th November, 2023. The court issued directions on the Appeal on 9th May, 2024, whereby the appeal was admitted for hearing and the Appellant was directed to file Record of Appeal within twenty-one (21) days and the matter was to be mentioned before the Deputy Registrar on 27th May, 2024 for parties to confirm compliance on the said directions. On this 20th May, 2024, the Deputy Registrar further directed the Appellant and Respondent to file their submissions and the matter to be cause-listed for the RRI Programme. 6. On 3rd June, 2024 when the matter was placed before Lady Justice A. Onditi for mention, she noted that the parties were absent and neither Record of Appeal nor submissions had been filed as directed. The Honourable Judge then proceeded to dismiss the appeal for want of prosecution. This is what has precipitated the filing of this instant application. 7. It is trite that courts are urged to take guidance in the provisions of Article 159 (2)(d) of the Constitution of Kenya, 2010 which provides:“ In exercising judicial authority, the courts and tribunals shall be guided by the following principles – (d). 8. Justice shall be administered without undue regard to procedural technicalities; In this case, a perusal of the record shows that on 9th May, 2024 the Directions on the appeal were issued in the Chamber and in the absence of the parties. Thereafter, further directions were also issued by the Deputy Registrar in absence of the parties and so was the dismissal of the appeal for want of prosecution by the court on 3rd June, 2024. Upon a further perusal of the record, this court finds that there is no indication that the parties and or their respective counsel were aware of the directions of the court to confirm their laxity in the matter since there is no Affidavit of Service filed. It would have been prudent for the court to issue notice to the parties to show cause why the appeal should not https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13810/eng@2025-09-12 2

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be dismissed for want of prosecution instead of dismissing the same less than one month after the directions had issued. 9. The law on dismissal of appeal for want of prosecution is provided for under Order 42 Rule 35 of the Civil Procedure Rules as follows:[Order 42, Rule 35.] Dismissal for want of prosecution. 35(1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. 10. From the said provisions, this court finds that it was premature for the court to dismiss the appeal for want of prosecution barely a month after issuance of directions on admission and disposal of the appeal. In any event, a delay in filing of pleadings or compliance of directions would qualify as mere procedural technicalities that would not go into the substance of a suit and or prejudice the sacred right of fair trial. 11. For those reasons, in exercise of its discretion, the court proceeds to find the Notice meritable and allows the same in the following terms:a. The orders issued on 3rd June, 2024 dismissing the appeal be and are hereby set aside. b. The appeal is hereby re-instated for hearing and determination on merit. c. Given that the appeal had already been admitted and the Applicant/Appellant has filed the Record of Appeal, the parties to file and exchange their respective written submissions within thirty (30) days of each other, with the Appellant going first. d. Mention on 13th November, 2025 for parties to confirm compliance and take a Judgment date. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 12 TH DAY OF SEPTEMBER , 2025. D. O. CHEPKWONY JUDGE In the presence of: Mr. Nganga holding brief for Mr. Karanja counsel for the Respondent No appearance for Appellant Court Assistant - Kinyua https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13810/eng@2025-09-12 3

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